Ketanji Brown Jackson and the job of a public defender

Andrew Koppelman

 The Supreme Court nomination of Judge Ketanji Brown Jackson is likely to elicit a kind of demagoguery that has been deployed against both her and other former public defenders, claiming that she should be disqualified because her clients included very bad people.  The implicit premise of such attacks is that it is wrong to represent criminal defendants – that we should punish them without hearing the strongest case that can be made on their behalf.  That amounts to a proposal to replace due process with some combination of raw intuition plus brute force. 

When Jackson was nominated to her present position as a Court of Appeals judge, Senator Ben Sasse (R-Neb.) asked her “were you ever concerned that your work as an Assistant Federal Public Defender would result in more violent criminals—including gun criminals—being put back on the streets?” Sen. Tom Cotton (R-Ark.) demanded, “Have you ever represented a terrorist at Guantánamo Bay?”  The answer was yes.  During her two years representing indigent defendants in the DC federal defender office, one of her clients was Khi Ali Gul, a Guantanamo detainee accused of terrorism.

If that’s disqualifying, then we can give up on having a fair criminal justice system.  Sasse asked whether she’d ever considered resigning from her representation of Khi Ali Gul, because her work might “result in his returning to his terrorist activities.”  The implicit assumption is that no one ought to represent him.  He should be convicted without any attorney’s help.  Her answer was powerful, citing the principles “that the government cannot deprive people . . . of their liberty without meeting its burden of proving its criminal charges,” and “that every person who is accused of criminal conduct by the government, regardless of wealth and despite the nature of the accusations, is entitled to the assistance of counsel.”

The Republican National Committee has now responded to her Supreme Court nomination by running the same line: her record “includes defending terrorists,” and “she worked as a lawyer for terrorists." 

The Amars show why the NC election map challenge must fail

Jason Mazzone

Yesterday, Republicans in North Carolina filed an emergency application with the U.S. Supreme Court asserting that a state congressional map drawn by a panel of state-court-appointed experts following the North Carolina Supreme Court's invalidation of an earlier map, violates the Elections Clause of Article I of the federal Constitution. The emergency application is based on what is known as the “independent state legislature” theory, which asserts that the federal Constitution bars state courts from playing any role--even when provided for in the state's constitution--in congressional redistricting or in any other state-regulated aspects of federal elections. Vik and Akhil Amar have a forthcoming article in the Supreme Court Review on why the independent state legislature theory is baloney. Their analysis shows why the Supreme Court should reject the emergency application out of North Carolina--and reject any future claims based on the independent state legislature theory. A draft of the Amars' article is here and below (with the Amars' permission) is a taste of their powerful analysis.

Academic freedom at Georgetown Law

Andrew Koppelman

I discussed Georgetown Law's recent academic freedom troubles with Judge Stephanos Bibas and Prof. Eugene Volokh​ last week at a Federalist Society event.  The conversation is now available as a podcast.

The Spirit of Aggression

Gerard N. Magliocca

The article that I'm now working on is about President Franklin D. Roosevelt's Constitution Day Address in 1937.  In that speech, FDR talked about the threat to constitutional democracy posed by the advance of dictatorship abroad. This passage from the speech is particularly apt today:

[O]ur generation has watched democracies replace monarchies which had failed their people, and dictatorships displace democracies which had failed to function. And of late we have heard a clear challenge to the democratic idea of representative government.

We do not deny that the methods of the challengers—whether they be called "communistic" or "dictatorial" or "military," have obtained for many who live under them material things they did not obtain under democracies which they had failed to make function. Unemployment has been lessened, even though the cause is a mad manufacturing of armaments. Order prevails, even though maintained by fear, at the expense of liberty and individual rights.

So their leaders laugh at all constitutions, predict the copying of their own methods, and prophesy the early end of democracy·-throughout the world.

Both that attitude and that prediction are denied by those of us who still believe in democracy—that is, by the overwhelming majority of the nations of the world and by the overwhelming majority of the people of the world.

And the denial is based on two reasons eternally right.

The first reason is that modern men and women will not tamely commit to one man or one group the permanent conduct of their government. Eventually they will insist not only on the right to choose who shall govern them, but also upon the periodic reconsideration of that choice by the free exercise of the ballot.

And the second reason is that the state of world affairs brought about by those new forms of government threatens civilization. Armaments and deficits pile up together. Trade barriers multiply and merchant ships are threatened on the high seas. Fear spreads throughout the world, fear of aggression, fear of invasion, fear of revolution, fear of death.

The people of America are rightly determined to keep that growing menace from our shores.

Balkinization Symposium on Aziz Huq, The Collapse of Constitutional Remedies: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Aziz Huq's new book, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

1. Jack Balkin, Introduction to the Symposium

2. Marin K. Levy, The Remains of the Day, Or What is Left After the Collapse of Constitutional Remedies

3. Rachel Bayefsky, Judicial Remedies and Structural Constitutional Violations

4. Lee Kovarsky, Asymmetric Specification, Professional Norms, And Abstention

5. Adam A. Davidson, A Truly Independent Judiciary?

6. Fred O. Smith, Jr., The Most Endangered Branch?

7. Aziz Z. Huq, Understanding our Crises in Constitutional Justice

Civil Liability and Insurrection

Gerard N. Magliocca

On Friday a Federal District Court rejected Donald Trump's motion to dismiss a civil lawsuit seeking to hold him liable for injuries resulting from the January 6th violence. A central issue in the case is whether Trump is entitled to official immunity from civil liability under Nixon v. Fitzgerald. The Court held that Trump's speech and acts, viewed in their totality, were unofficial and thus fell outside the shield of Nixon.

I am unsure if this rationale will stand up on appeal, as Nixon was pretty emphatic in stating that official presidential immunity should be construed broadly. In a footnote, though, the District Court pointed out a narrower justification for holding that Nixon should not apply. Citing Joseph Story's Commentaries, the Court quoted Justice Story's comment that a federal judge who would "countenance, or aid insurgents in a meditated conspiracy or insurrection against the government" was not acting in an official capacity. (Story was discussing impeachment rather than civil liability, but his point was that a judge could be impeached and removed for unofficial wrongs like aiding an insurrection.)

The suggestion, then, is that engaging in insurrection cannot be an official act. And you could draw on Section Three of the Fourteenth Amendment to support that point, as that provision bars insurrectionist officials or former officials from ever exercising official power again. Of course, you can understand why the District Court did not adopt this line of reasoning. Holding that Trump engaged in insurrection would raise grave doubts about his eligibility to run again and was not directly at issue in the civil lawsuit.

If the Supreme Court takes this case, however, they can use the civil suit as a vehicle to address whether Trump engaged in insurrection. The Court needs to resolve that question as soon as possible to ensure an orderly 2024 presidential election, and reviewing this case on appeal may well be the quickest route.

Understanding our Crises in Constitutional Justice

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021). 

Aziz Z. Huq

The Collapse of Constitutional Remedies aims to situate current liberal and progressive dismay about the federal courts in a historical and, more pointedly, structural context.  It begins with a sharp contrast: There is a poverty of remedies for those afflicted directly by state violence. What commentators since Dicey have understood as a central element of the rule of law—ordinary remedies for ordinary, unlawful violence by the state—is largely missing in action. Each Term of the Court, however, this lacuna sits uncomfortably alongside the warm welcome offered firms challenging the regulatory state. The result is a remedial chiaroscuro. The overall effect is one painted by not Justices, not legislators or the Constitution’s drafters, in which poverty and marginalization predict a diminished chance of being heard—let alone made whole—in court. 

This bleak contrast is not simply, or even most importantly, a function of fifty years’ of conservative majorities on the Supreme Court. It instead arises organically from the political economy—the matrix of institutions, opportunities, and incentives—seeded by Article III of the Constitution.  That provision’s drafters assumed a national government without parties. They also worked with the belief that the president would be highly constrained by a limited supply of potential judges (only Yale, Harvard, and William and Mary had even a single chair in law before 1790). And they took for granted that new legal materials would be produced in only a slow trickle, leaving adjudicators little creative wiggle room. 

Obviously, none of these conditions held fast. Today, a partisan national government selects from an ideologically heterogenous supply of lawyers. They in turn can range across a vastly wider range of legal materials. Despite earlier claims to constrain judges, the increasingly dominant originalist modality leaves wide open the spectrum of permissible interpretive choices. The eponymous ‘collapse’ of remedies against illegal state violence bubbles up from the larger ‘collapse’ of these “unspoken presuppositions” (in Fred Schauer’s felicitous words) of Article III. Without understanding that second, larger collapse, efforts to come to grips with a judiciary of increasingly undiluted partisan loyalty (respecting remedies and far beyond) will be of little avail.

In a sequence of incisive and wide-ranging commentaries, Professors Rachel Bayefsky, Adam Davidson, Lee Kovasky Marin Levy, and Fred Smith identify numerous extensions, clarifications, and grounds for resisting my effort to situate the present conjuncture in historical and structural context in The Collapse of Constitutional Remedies.  I owe all of them—and blog host Jack Balkin—many thanks for their close reading and careful engagement. Trying to respond to all of their excellent suggestions and objections would try the readers’ patience, even of it would rebound to my intellectual benefit.  In what follows, I select and reflect on what seem to me some of the most important observation that Bayefsky, Davidson, Kovasky, Levy, and Smith offer. Their contributions, though, emphatically reward greater study and reflection than I will muster here.

The Lost Art of Negotiation

David Super

      Accounts of the Build Back Better environmental and human services legislation have swung between extreme interpretations, neither even close to true.  During the Spring, the Summer, and much of the Fall, we were told that “the Democrats” could do pretty much whatever they pleased and pass it through the “budget reconciliation” process with only their bare majority of votes.  That was false.

     Then, when Senator Manchin declared that he did not support Build Back Better, we were told that the legislation was dead.  Now that it has become apparent that interest remains in the legislation, we see people writing that it may be able to move, but only on whatever terms Senator Manchin likes.  Thus, every negative statement made by, or attributed to, him concerning some provision in the legislation is treated as absolutely dooming that provision.  Indeed, when Senator Manchin said he would like to pass pieces of Build Back Better through the regular order – outside of reconciliation and subject to the filibuster – some credulous scribes insisted that that was what was going to happen.  None of this is correct, either. 

     What all these prognostications, which seem quite sincere, have in common is a remarkable failure to understand the process of negotiation.  When two entities need each other’s agreement to pursue some common agenda, and neither has power to dictate to the other, the ordinary process for reaching agreement is negotiation.  The optimism of Summer ignored the need to negotiate, blithely assuming that somehow Senators Manchin and Sinema would meekly vote for any bill the leadership put under their noses regardless of their personal preferences (and then would docilely vote against any Republican amendments to strike the provisions they opposed).  The pessimism of Winter similarly ignores the need to negotiate, assuming that everything Senator Manchin says is diktat, the final word on the legislation.  Progressives’ unfounded vilification of Senator Manchin has deceived them into seeing him as an amalgam of Pontius Pilot, Nero, and Jabba the Hutt, callously and even flippantly turning thumbs-up or thumbs-down and having everyone slavishly fall into line. 

     In fact, what Sen. Manchin has sought all along has been a negotiation.  And he is actually quite a skilled negotiator.  Over the summer, his conversations with other senators were somewhat informal.  Once House progressives began to hold the bipartisan infrastructure bill hostage, he began to take a more adversarial position.  He also insisted on negotiating with President Biden in the belief that any concessions he won in such bargaining would stick. 

     Having hammered out a deal with the President that included a great many progressive priorities but not family leave or immigration reform, he found that the White House was unprepared to stand by that deal.  Indeed, he claimed that White House staff was covertly leading a crude pressure campaign seeking to make him relent on the very matters it had conceded to him.  At one point, too, Senate Majority Leader Schumer was reported to be planning to include in the legislation he brought to the floor provisions he had agreed to drop, forcing Senator Manchin to vote to remove them.  If true, this would be complete bad faith, but even if these reports were not correct, the failure of the White House and Democratic leadership to douse these pressure campaigns and take responsibility for their concessions made them unreliable negotiating partners. 

     Under these circumstances, Senator Manchin concluded that the only way to stop the unpleasant pressure campaign was to demonstrate his leverage in the negotiations by walking away from the table.  That is an aggressive negotiating tactic, but hardly an unusual one.  Once the reality of his leverage sunk in, he started intermittently complaining about provisions near-and-dear to the hearts of progressives, buttressing his position in eventual negotiations.  He knows he will not win on every one of his objections – he may not even want to do so.  But after having been played for a fool in the Fall negotiations, he is doing everything he can to maximize his leverage and to ensure that the President and Senate leadership will appreciate the need to stand by whatever deal they make. 

     We almost certainly will get a Build Back Better bill.  It will not go through the regular order:  not a single Republican, much less ten of them, has given any indication they would vote to break a filibuster even in exchange for huge policy concessions.   

     And the new Build Back Better will not come quickly.  It now will have to wait until the Senate finishes with annual appropriations for the fiscal year now almost half-completed as well as for the President’s Supreme Court nominee and possibly other urgent legislation.  That likely carries us into April.  The negotiations will be conducted in the utmost secrecy, in marked contrast to those over the Summer and Fall.  And when a deal is reached, that will be the final legislation – not a starting point for further pressure campaigns.  It will not contain any major provisions not included in last Fall’s deal, and it likely will scale back significantly or omit some of those that were. 

     One positive effect of the rampant extreme pessimism of the past few months is that whatever version of Build Back Better finally emerges should easily surpass now-dismal expectations.  That should allow it to pass relatively easily.  But progressives would do much better, on this legislation and in the future, if they recognized the frequent need for negotiations – and the high cost likely to result from vilifying one’s counter-party.   

     @DavidASuper1

The Most Endangered Branch?

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Fred O. Smith, Jr.

Although this book, as the title suggests, describes the collapse of constitutional remedies, the book is much broader than that. Prof. Aziz Huq provides a sophisticated, original account of the political economy of constitutional adjudication. How is the federal judiciary shaped by other branches and actors? This is a classic inquiry in constitutional commentary. As Prof. Huq observes, this question dates back to the earliest days of the republic; Alexander Hamilton dedicated significant attention to this question in Federalist Papers 78 and 79. On Prof. Huq’s account, however, the constitution’s mechanisms for protecting judicial independence were informed, in part, by assumptions and conditions that unraveled. He argues that unanticipated threats to the judiciary have created incentives for remedial conservatism.

Josh Hammer and originalism's entropy

Andrew Koppelman

Constitutional theory is abstruse and nerdy.  The only reason you should care about it is that, if it is badly done, it can turn America into an oppressive tyranny or a failed state.  So it is alarming that the so-called “common good originalism” propounded by Newsweek opinion editor Josh Hammer is being taken seriously by right wing intellectuals. 

I explain in my new column at The Hill, here. 

A Truly Independent Judiciary?

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Adam A. Davidson

The Collapse of Constitutional Remedies focuses on a too-often-ignored question about our famously independent judiciary: Independent to do what? Huq argues persuasively that through a combination of institutional imperatives and personal political goals, the judiciary’s purported independence has been used overwhelmingly to ration the limited resources of legality and redress in regressive ways. The disempowered, often minority, individuals subjected to the coercive force of the state have found the courthouse doors shut, while firms seeking to undermine regulatory regimes have been welcomed with open arms.

Despite the persuasiveness of this argument, I came away from Huq’s Coda thinking that his prescriptions to fix this state of the world zigged when they might have zagged. While Huq suggests taking advantage of the political branches’ power over the judiciary, I wondered whether it might be better to head in the other direction by making the judiciary truly independent.

Asymmetric Specification, Professional Norms, And Abstention

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Lee Kovarsky

The court hereby dismisses the excessive force claim because the constitutional law wasn’t clearly established. The court hereby admits the constitutionally tainted evidence because police reasonably believed they had legal authority for unlawful seizure by force. The court hereby refuses to address the constitutional error because at least one jurist might agree with the state decision.

And so it goes.

Aziq Huq’s The Collapse of Constitutional Remedies (“Collapse”) is a brilliant-but-dispiriting account of a very particular taste for judicial abstention. Per Huq, the Senate’s advice-and-consent function combines with judicial self-interest to produce a federal bench that skimps on remedies for unlawful state coercion. Huq starts with the familiar observation that Constitution’s third article was skeletal, and that it left much for subsequent institutional settlement. Appointed judges were to be, in the Framers’ thinking, non-partisan technocrats who resolved disputes by reference to reasonably determinate legal texts. The “law” would be largely unresponsive to the fields of political gravitation operating on the other branches.

Huq argues that three developments proved the Framers’ assumption unwise. First, advising-and-consenting Senators developed national partisan allegiances that trumped any institutional interest in depoliticized judicial appointments. Second, democratized legal education expanded the political spectrum of lawyers qualified for federal judging. Third, the area of legal uncertainty exploded—both because of more federal legislation and because people began acknowledging frankly the indeterminacy of legal texts. The result was a more heavily politicized judiciary, the modern version of which had institutional interests in reduced caseloads.

Collapse moves through the history by tracing the rise and fall of four remedies: causes of action against (1) state and (2) federal officials, (3) the habeas corpus writ, and (4) the Fourth Amendment exclusionary rule. The historical account leaves little doubt about the linkage between constitutional structure and the modern remedial deficit in state coercion cases. And as these remedies for unlawfully coercive behavior move in one direction, remedies for claims of unconstitutional structure—sounding in familiar registers of federalism and separated powers—move in the other. This remedial distribution privileges the interests of structurally advantaged groups over their more vulnerable counterparts.

Judicial Remedies and Structural Constitutional Violations

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Rachel Bayefsky

Professor Aziz Huq’s The Collapse of Constitutional Remedies provides a terrific 360-degree tour of the federal courts’ treatment of judicial remedies for constitutional violations.  Huq deftly traverses a range of domains, from suits against police officers to habeas petitions to antidiscrimination claims.  Highlighting patterns in federal courts’ limitations on remedies in numerous areas, Huq demonstrates the analytic benefits that redound from observing cross-doctrinal patterns instead of viewing each aspect of the law in isolation.  Further, Huq places federal courts’ treatment of constitutional remedies in rich historical perspective, emphasizing the evolution of judicial decision-making in connection with social and political trends.

One of the book’s many interesting contributions—and the point on which I will concentrate—is its argument that federal courts have taken different approaches toward different kinds of constitutional violations.  According to Huq, federal courts have restricted judicial remedies for constitutional violations stemming from police violence or infringements of individuals’ civil rights.  At the same time, federal courts have been more willing to provide remedies in suits seeking to vindicate structural constitutional principles, such as the separation of powers or federalism.  The latter types of suits are often litigated by companies objecting to administrative agency regulation.

The Remains of the Day, Or What is Left After the Collapse of Constitutional Remedies

Guest Blogger

Balkinization Symposium on Aziz Huq, The Collapse of Constitutional Remedies

JB

This week at Balkinization we are hosting a symposium on Aziz Huq's new book, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

We have assembled a terrific group of commentators, including Rachel Bayefsky (Virginia), Adam Davidson (Chicago), Lee Kovarsky (Texas), Marin Levy (Duke), and Fred Smith (Emory).

At the conclusion, Aziz will respond to the commentators.

Mitch McConnell Prepares the Trapdoor

Gerard N. Magliocca

On January 6th, 2021, Senator Mitch McConnell described what occurred at the Capitol as a "failed insurrection." I've quoted this comment several times in describing why I think that the attack was an insurrection for purposes of Section Three of the Fourteenth Amendment. Since then, though, Senator McConnell had avoided describing January 6th as an insurrection. I thought that perhaps he realized the legal significance of that characterization and did not want to use that word again.

Today, though, Senator McConnell again described January 6th as a "violent insurrection." He is one of the smartest politicians in America. He knows exactly what describing January 6th as an insurrection means for the possible disqualification of officeholders and candidates, including Donald Trump. Thus, it is hard to avoid the conclusion that McConnell is tacitly inviting the courts to disqualify the ex-President from running again. And that makes sense from the Senator's perspective, in that the GOP's chances of winning the presidency in 2024 are greater if they run another candidate. 

We'll see if the Supreme Court takes the hint.

The Aw-Shucks-No-Sweat-Just-Hangin’-Around Appropriations Bill of 2022

David Super

     Some years ago, Members of Congress sought to outdo one another in the application of adjectives to supplemental appropriations bills.  If we say a bill is a “dire emergency supplemental appropriation”, the reasoning must have gone, maybe nobody will look too closely at all the rather mundane activities it is funding. 

     The feeling about appropriations this year could hardly be more different.  The beginning of the fiscal year arrived on October 1 without enactment of a single one of the twelve regular appropriations bills that, between them, fund the federal government.  Since then, Congress has enacted a series of stopgap continuing resolutions to keep the government going, and it likely will enact another this week or early next to avert a partial government shutdown on February 18. 

     The reason for the absence of appropriations bills is not sloth or a failure to appreciate the importance of letting federal agencies their budgets so they can plan and go through contracting procedures.  Instead, the absence of appropriations bills is a forceful application of the principle that “nothing is agreed until everything is agreed.”  The two parties likely would have little trouble reaching common ground on several of the individual bills, but in order to do so they would have to reach agreement on the top-line dollar figure to be made available for each of the twelve appropriations bills.  That would allow each of the twelve appropriations committees to know how much money they could distribute and negotiate funding levels for particular programs.  But the parties are in sharp disagreement about what those top-line figures should be.  

     President Biden’s budget proposal and the House’s appropriations bills make large investments in social and environmental programs in large part to offset the damage those programs suffered from a decade of sequestration and tight appropriations caps.  Senate Republicans, however, insist on parity between domestic and defense spending, meaning that if domestic programs get large increases, so does the Pentagon.  The prior decade of austerity affected the Defense Department much less seriously than it did domestic programs, in part for technical reasons and in part because the Pentagon proved adept at smuggling funding for its regular operations into “emergency” supplemental appropriations for the wars in Afghanistan and Iraq. 

     Democrats therefore face an unappealing choice:  force-feed the Pentagon far more money than it needs or can efficiently use, or have Republicans block any regular appropriations bills for the current fiscal year.  This would result in a year-long “continuing resolution” freezing all programs at the levels Congress negotiated last year with former President Trump.  Congress could add extra funding to address “anomalies” in a few programs, but Republicans presumably would demand Defense anomalies comparable to the domestic ones.  It also would all but guarantee a year-long continuing resolution next year, as well. 

     By all indications, the congressional Democratic leadership is trying to reach agreement with Republicans that would allow full appropriations bills to move forward.  This means, at a minimum, defense spending at the levels contained in the bipartisan Defense Authorization Act, whose excesses have faced withering criticism from both left and right. 

     The process of reaching agreement to write full appropriations bills has been further complicated by the large number of substantive policy issues governed by appropriations riders.  A year-long continuing resolution traditionally continues all prior riders.  Democrats desire to eliminate some of last year’s riders while adding or strengthening others.  At this point, however, unless they can work out a swap with Republicans, appropriations bills are likely to leave the rider-verse largely undisturbed. 

Would Eliminating the Legislative Filibuster Help?

     Because opposition to the filibuster so dominates progressive discourse on federal policy these days, it may be useful to work out how all of this would go were there no legislative filibuster.  Superficially, this laborious process is necessary only because Democrats require sixty votes to pass appropriations bills through the Senate. 

     Yet in a world without the filibuster, the starting point would be much, much worse:  President Trump and the Republican Congress likely would have zeroed out many important social programs in the appropriations bills written during 2017 and 2018; they were unable to do so only because Democratic senators could filibuster any extreme appropriations bills.  Other programs’ funding would have been slashed much more deeply than the Republicans were able to do.  (Those insisting that Democrats might as well eliminate the legislative filibuster because Republicans are certain to do so next time they can should explain why Senator McConnell did not drop the legislative filibuster in 2017-18 when it severely hampered this and many other pieces of the Republican legislative agenda.)

     Gutting or ending these programs would have done considerable damage over the past four years and would have left a much bigger funding hole needing to be filled now.  In addition, where Republicans had dissolved programs, it would require still more money and time to recreate them.  For example, if a community health center had been closed three years ago, it would take considerable time to find and rent space, hire managers and health care professionals, obtain provider agreements with Medicare, Medicaid, and other insurers, publicize the center’s renewed existence, and so forth.  Where states were unwilling to help, federal staff likely would be sufficient to organize only a handful of new health centers per year. 

     And even if the current Congress was willing to invest in building back those programs, the job likely would not be complete before the next Congress – likely with a Republican majority – took office and stopped the rebuilding process in its tracks.  Human services programs, along with the people they serve and those that staff them, are delicate and vulnerable:  easy to harm and slow to heal.  They cannot do well in an environment of wild policy swings, which is what the filibuster’s end would entail. 

     Moreover, even if Senate rules allowed Democrats to legislate with a simple majority, that majority often will not be available.  Obviously they would be unable to pass legislation that divides their ideologically diverse caucus, as seen in the setbacks the Build Back Better human services and environmental bill has suffered.  In addition, their majority depends on the good health of fifty-one people, some of whom are quite old.  When New Mexico Senator Lujan – who is not old at all – suffered a stroke in late January, Democrats lost their Senate majority until his projected return in mid-March.  Build Back Better, contested appropriations votes, and contested confirmations (is there any other kind these days?) are therefore on hold for more than a month.  (When Senator Manchin talks about preserving the civility of the Senate, part of what he means is the tradition of “pairing”:  senators agreeing to withhold their votes to balance those of ailing members of the other party.  That would be quite useful just now.)  With Democrats controlling the House and the White House, Senator McConnell is not expected to attempt any “jail-break” maneuvers with his temporary majority; were a Republican president in office, considerable mischief would be possible.   

     With appropriations as elsewhere, eliminating the filibuster is the political equivalent of krokodil:  a cheap, quick high followed by a staggering amount of long-term damage and pain.  The Democrats’ current bind results from losing too many elections and from failing to develop effective messaging about the need for human services funding that would deter Republican attacks.  No quick fix is available. 

     @DavidASuper1

Balkinization Symposium on Death and Legal Scholarship-- Collected Posts

JB

Here are the collected posts for our Balkinization Symposium on Death and Legal Scholarship.

1. Mary L. Dudziak, Death and Legal Scholarship: How an Era of Mass Carnage Affects the Substance of Our Work

2. Aziza Ahmed, The Law and Politics of Life and Death: AIDS, COVID, and Abortion

3. Catherine Powell, The “War” Against Covid: Warfare and its Discontents

4. Brittany Farr, Grief and Black Feminist Theory

5. Linda McClain, COVID-19 Hits Home: The Salience of Individual and Collective Grief for Legal Scholarship

6. Mary L. Dudziak, Afterword: Living with a Ghost 

The Trouble with Court-Packing

Guest Blogger

Neil Siegel

In a new article, I argue that Court-packing—that is, changing the size of the U.S. Supreme Court in order to change its decisionmaking going forward—is problematic from the perspectives of constitutional policy, constitutional norms, and even, potentially, constitutional law except in three genuinely extreme circumstances.

Afterword: Living with a Ghost

Guest Blogger

For the Balkinization Symposium on Death and Legal Scholarship

Mary L. Dudziak

Brittany Farr’s post in this blog symposium led me, via Saidiya Hartman, to Michel-Rolph Trouillout, who wrote: “Slavery is a ghost, both the past and the living presence; and the problem of historical representation is how to represent the ghost.” Our present condition is, of course, vastly different from Trouillot’s topic, but we also will not leave our multifaceted present trauma behind us. The future will involve contending with a ghost, and the problem of its representation in our work. As these posts have illustrated, the importance of this era of mass carnage and suffering to law-related scholarship is already revealing itself.

To aid further engagement with this topic, we conclude with a partial and somewhat idiosyncratic bibliography of related works. We thank librarians at Boston University School of Law who compiled much of this list. Important works are also hyperlinked in the preceding essays. In particular, works on Black death and grief are included as links in Brittany Farr’s post.

Interconstitutionalism

Jason Mazzone

Cem Tecimer (a doctoral student at Harvard Law School) and I have been busy on a project that centers around a simple question: what relevance do past constitutions have for interpreting and applying an existing constitution? One answer might be: no relevance because a new constitution is, well, new. But that isn't the answer most courts give. Instead, courts (and other constitutional interpreters) routinely make use of predecessor constitutions to interpret the in-force constitution. Cem and I call this practice interconstitutionalism. Cem and I have gathered hundreds of examples of the practice from the state courts (half of the states have had more than one constitution) and from courts in other nations that have had multiple constitutions. We have also looked at uses of the Articles of Confederation in interpreting the U.S. Constitution (recognizing there is some debate about whether the Articles should be deemed a constitution) and uses of the U.S. Constitution in interpreting the confederate constitution.  Interconstitutionalism has lots of dimensions (some very surprising) and some interesting implications for thinking about constitutional interpretation, constitutional change, and popular sovereignty. For example, many state courts take the position that in discerning the original public meaning of a constitutional provision, the relevant point in time is not when the existing constitution was ratified but when the provision first occurred in a constitution of the same state. The more we dig the more topics emerge and so we anticipate multiple papers from the project. The draft of our first paper is now posted here. We will be glad to hear about additional examples or other lines of inquiry that occur to readers. My e-mail is mazzonej[@]illinois.edu.         

COVID-19 Hits Home: The Salience of Individual and Collective Grief for Legal Scholarship

Guest Blogger

For the Balkinization Symposium on Death and Legal Scholarship

Linda McClain

There are numerous lenses through which legal scholars have studied the COVID-19 pandemic, alongside the many different ways we (as legal scholars) experience it as individuals and as members of families, communities, and polities. As the pandemic enters its third year, an incomplete list would include the lenses of public health, battles over science and medicine, disagreements over the constitutional limits of religious liberty, political polarization, global geopolitics, xenophobia, and the pandemic’s exacerbation of preexisting inequalities of race, class, and gender (what symposium contributor Catherine Powell calls the “color and gender of COVID”).  Perhaps unsurprisingly, gender is the scholarly lens through which I first looked at COVID-19. Several months into the pandemic, Naomi Cahn and I began an article on the “gendered complications of COVID-19,” focusing on ways that the pandemic was highlighting and making worse various forms of gender inequality and inequity in the U.S. and the intersecting impact of gender, race, and class in the lack of an infrastructure supporting gender equity. Focusing on inequities around work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly women of color—in providing essential but undervalued care work, we argued for a “feminist recovery plan.”

Grief and Black Feminist Theory

Guest Blogger

For the Balkinization Symposium on Death and Legal Scholarship

Brittany Farr

The question of how this era of “mass carnage” impacts the substance of my work, has become, for me, a question about grief. In this brief essay, I explore one of the most well-known (and oft-theorized) examples of public grief in the U.S.—the murder of Emmett Till—in an effort to understand what lessons Black feminist theory might have for undertaking legal scholarship at a time when death, trauma, and loss feel more inescapable than ever. After all, Black feminist theorists and scholars of African American history more generally have long reckoned with the burden of mass death and its resultant grief. As historian and cultural critic Saidiya Hartman has written, “Grief is a central term in the political vocabulary of the diaspora.” (758).

Politics in Command: Understanding China’s Techlash

Guest Blogger

Nick Frisch

At first glance, Beijing’s crackdown on China’s tech firms might look familiar to American or European regulators grappling with how to tame tech. As in Washington and Brussels, Chinese regulators cite concerns over monopolistic abuses and dodgy data brokers. Officials in all three jurisdictions have gestured towards similar-sounding motives for their actions: reining in unaccountable corporate cartels, protecting consumer rights, privacy, and data from monopolistic abuses, and stopping socially disruptive profiteering from civil discord.

Down at the level of the average tech consumer, China’s recent actions have indeed mirrored, and in some cases exceeded those in Europe and America. Chinese authorities, for instance, have spent the past few years cracking down on shady data brokers whose practices damaged consumer trust; Beijing’s recently introduced data law matches, and in many cases exceeds, the stringency of US or EU policies.

What’s missing from this picture is a dose of Chinese history. In the relationship between the Chinese state, technology, and market forces, the Chinese government has never been constrained by free market dogma. On the contrary, the Communist Party’s ideological origins, as a conspiratorial and messianic Leninist “vanguard” of professional revolutionaries, put the Party leadership above the constraint of any law or constitution, accountable only to their own understanding of the “inexorable” laws of historical development. Long before the ideological import of Marxism-Leninism, the imperial Chinese administrative state saw itself as a guardian against market distortions in strategic commodities like salt, rice, and water. Left unchecked, market forces could put salt and rice outside the reach of subsistence farmers, leading to famines and revolts, and a toppling of the ruling dynasty; if the state failed to maintain dykes and levees, mismanaged irrigation could lead to hunger or flooding, and pitchforks at the gates of the Forbidden City. For the administrators of the premodern imperial state, to relinquish the right to exercise control over flows of people, capital, commodities, and information would have been seen as misguided and dangerously eccentric. For the leadership of a Leninist Party-state, accustomed to thinking of itself as a vanguard uniquely attuned to the developmental dialectic of history, surrendering such powers over markets would be unthinkable. These two strands of statecraft were molded into the rulership of Mao Zedong during the early decades of the People’s Republic of China. In braiding together the Marxist-Leninist and imperial dynastic notions of statism, Mao pursued economic and political schemes that turned China in on itself and prioritized political purity over economic growth. The Chairman once quipped: “socialist weeds are more fragrant than capitalist grain.”

The “War” Against Covid: Warfare and its Discontents

Guest Blogger

Biden vs. Trump: The Makings of a Shattering Constitutional Crisis

Gerard N. Magliocca

Bruce Ackerman and I have a new essay out in Politico about how Section Three of the Fourteenth Amendment will throw the next presidential election and inauguration into chaos unless the Supreme Court intervenes soon  to decide if Donald Trump is constitutionally eligible to seek another term.